Kris McDaniel-Miccio counsels the defense team on TRO case

For the past several weeks, members of the Standing Rock Sioux tribe have been joined by hundreds of others to protest the construction of the Dakota Access pipeline.

Along with two of her students, Sturm College of Law Professor Kris McDaniel-Miccio has aided in countering a temporary restraining order (TRO) issued against the tribe and other activists last week.

“A TRO is an emergency device used to stop behavior or to make people do something,” McDaniel-Miccio explains. In this case, Dakota Access filed a TRO against tribal members and supporters to stop those groups from protesting, which was blocking access to the construction site.

“The issues for the tribe are that there wasn’t real consultation before Dakota Access was given permits, and that there have been situations in the past where a pipeline has burst and destroyed the water table,” McDaniel-Miccio says.

We have a mission that talks about connections to the community and public engagement, and our work on this case demonstrates our commitment to those principles.
Kris McDaniel-Miccio professor of law at the Sturm College of Law

Joined by students Shannara Quissell and Zachary Wechsler, as well as law librarian Diane Burkhardt, McDaniel-Miccio began researching a strategy to block the TRO. Their research uncovered several issues that, McDaniel-Miccio argues, should have stopped the court from issuing a TRO in the first place.

First, when Dakota Access asked for the TRO, the firm maintained that it was following through on lawful construction and that it had all the requisite permits, McDaniel-Miccio says. “I discovered nothing could be further from the truth.

“There was a pending preliminary injunction hearing filed in Washington, D.C., by the tribe to stop the construction because of permit violation,” she adds, “so Dakota Access wasn’t trying to obtain the TRO to maintain the status quo, but to support their own economic interests. They brought no evidence that there was an outstanding proceeding in Washington, D.C.”

In addition, the TRO stated that the tribe’s members could not block access to the construction site, which, McDaniel-Miccio says, didn’t provide enough detail. “Well, what do they mean by access? That could be the road that leads to the construction site, or the road that leads to the road, until a huge area is affected.”

Ultimately, the defense team used the strategy provided by McDaniel-Miccio and her students, leading the judge to grant a partial order early last week for a temporary halt to construction in some areas.

McDaniel-Miccio considers work like this to be in step with DU’s overarching aims. “As an institution, we have a mission that talks about diversity,” she notes. “We have a mission that talks about connections to the community and public engagement, and our work on this case demonstrates our commitment to those principles.”